SAFEGUARDING AGAINST DISTORTIONS of SCIENTIFIC RESEARCH in FEDERAL POLICYMAKING by Melissa L

Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. COMMENTS SAFEGUARDING AGAINST DISTORTIONS OF SCIENTIFIC RESEARCH IN FEDERAL POLICYMAKING by Melissa L . Kelly, Genna Reed, Gretchen T . Goldman, and Jacob M . Carter

Melissa L. Kelly is Staff Director and Attorney at the University of California, Irvine School of Law’s Center for Land, Environment, and Natural Resources (CLEANR). Genna Reed is Senior Analyst in the Center for Science and Democracy at the Union of Concerned Scientists (UCS). Gretchen T. Goldman is Research Director of the Center for Science and Democracy at UCS. Jacob M. Carter is a Research Scientist in the Center for Science and Democracy at UCS.

he appropriate use of science in policymaking and regulated industries have served as fertile ground for depends upon integrity in scientific research and in the Donald Trump Administration’s unprecedented efforts the ways in which that research is communicated to sideline scientists, defund and disregard research, and Tand applied throughout the policymaking process. Exist- dismantle the institutional means by which science can ing rules and norms concerning conflicts of interest among inform government policy.1 Long-held rules and norms agency leaders, advisors, federal employees, and lawmakers regarding the barriers that should exist between decision- demonstrate an understanding that sound policy decisions makers and industries affected by policy outcomes are require the independence of scientists and the impartial- eroding, pointing toward a need to strengthen how con- ity of regulators. Conflicts of interest introduce the poten- flicts of interest are handled in the federal government. tial for bias and interference with research and regulation, On May 22, 2019, the University of California, Irvine not only undermining agencies’ abilities to develop and School of Law’s Center for Land, Environment, and Natu- implement the best possible science-based policies, but also ral Resources (CLEANR) and the Center for Science and contributing to the erosion of public confidence in both Democracy at the Union of Concerned Scientists (UCS) science and government. convened a roundtable that brought together leading sci- In spite of these enduring concerns, ambiguity regard- entists, scholars, advocates, and policymakers to explore ing what constitutes a conflict of interest in science and potential safeguards to protect scientific research and its policymaking, as well as historically persistent ties between use in federal policymaking.2 The roundtable discussion regulatory agencies, advisory committees, lobbying firms, 1. Emily Berman & Jacob Carter, Scientific Integrity in Federal Policymaking Authors’ Note: The authors would like to thank Michael Under Past and Present Administrations, 13 J. Sci. Pol’y & Governance 1 (2018). Robinson-Dorn, University of California, Irvine School of 2. Participants included Mustafa Santiago Ali (Environmental Justice, Cli- Law clinical professor of law and member of CLEANR’s mate, and Community Revitalization, National Wildlife Federation), Advisory Committee, for his critical role in developing the Jay Austin (Environmental Law Institute), Emily Berman (UCS), Ja- cob Carter (UCS), Joel Clement (Harvard University Belfer Center for May 2019 roundtable and his invaluable input on this Com- Science and International Affairs; UCS), Anita Desikan (UCS), Holly ment. They also thank all the roundtable participants for Doremus (University of California, Berkeley School of Law), Victor B. their meaningful contributions; participants Martha Kinsella, Flatt (University of Houston Law Center), Robert L. Glicksman (George Washington University Law School), Gretchen Goldman (UCS), Shaina Brennan Center for Justice, Sidney Shapiro, Wake Forest Goodman (National Partnership for Women and Families), James Good- University School of Law, and Wendy Wagner, University win (Center for Progressive Reform), Michael Halpern (UCS), Adrienne of Texas, Austin School of Law, for their time and thoughtful Hollis (UCS), Rush Holt (American Association for the Advancement of Science), Peter Jenkins (Public Employees for Environmental Responsibil- comments on this Comment; Gabriel Weil, Climate Leader- ity), Melissa Kelly (University of California, Irvine School of Law), Mar- ship Council, for his contribution as a roundtable participant tha Kinsella (Brennan Center for Justice), Lauren Kurtz (Climate Science and former CLEANR fellow; and University of California, Legal Defense Fund), David Michaels (George Washington University School of Public Health), Amit Narang (Public Citizen), Genna Reed Irvine School of Law student Daniel Kolko and CLEANR re- (UCS), Michael Robinson-Dorn (University of California, Irvine School search assistant Neil Dy for their research support. of Law), Andrew Rosenberg (UCS), Sidney Shapiro (Wake Forest Univer-

focused on agencies tasked with protecting environmen- violated federal ethics requirements when he met with his tal and human health, including the U.S. Environmental former employer about matters he previously worked on— Protection Agency (EPA), the U.S. Department of the directly weakening endangered species protections.7 Interior (DOI), and the National Oceanic and Atmo- Unfortunately, DOI is not unique in this respect. Across spheric Administration (NOAA). Based on the discussions federal agencies under the Trump Administration, con- at that roundtable, CLEANR and UCS offer the follow- flicted appointments and ethics failures have resulted in ing recommendations for the executive branch, the U.S. policy agendas that prioritize industry preferences over the Congress, and federal agencies to better protect against public interest, with very few checks. conflicts of interest, and to secure and advance the role of Historically, presidents have understood that certain science in policymaking. critical positions require specialized skills or expertise. This Comment expands upon the recommendations Although, “[i]n recent years, presidents have increasingly CLEANR and UCS proposed in the September 2020 fact appointed people—often former associates or political sheet, Conflicts of Interest at Federal Agencies: Recom- allies—without the requisite qualifications for impor- mendations for 2021 and Beyond.3 Part I focuses on con- tant positions,” and the Trump Administration has not flict-of-interest recommendations pertaining to political only “embraced candidates who lack relevant qualifica- appointees, Part II on federal advisory committees (FACs), tions,” but even those who are “opposed to the objectives Part III on the scientific peer review process, and Part IV of the office or agency they have been tapped to lead.”8 on oversight and enforcement. Part V concludes. For example, President Trump nominated Sam Clovis as U.S. Department of Agriculture chief scientist despite his lack of a hard science degree, open skepticism of climate I. Political Appointments science, and statement that President Trump’s agriculture policy would focus “heavily on trade and regulatory issues, not the impacts of increased heat waves, droughts A. Protect Against the Appointment and and other impacts of rising global temperatures.”9 Most Undue Influence of Individuals With recently, David Legates was hired as NOAA’s deputy Conflicts of Interest assistant secretary of commerce for observation and pre- diction.10 He holds this high-level position at an agency Political appointments during the Trump Administration whose mission is to predict changes in climate, despite his have been fraught with conflicts of interest pertaining to long history of questioning well-founded climate science the specific individuals appointed.4 Appointments for pow- and his affiliation with the Heartland Institute—a climate erful DOI positions, for example, went to individuals who denialist think-tank.11 have previously lobbied for the fossil fuel industry. Former The appointment of unqualified individuals to criti- Interior Secretary Ryan Zinke keynoted a Louisiana Oil cal government positions undermines the public’s faith in and Gas Association luncheon, where he declared, “Our government, and politicizes traditionally nonpartisan gov- government should work for you, the oil and gas industry.”5 ernment functions such as scientific research.12 Stronger, His successor, Interior Secretary David Bernhardt, also enforceable protections are needed to address conflicts of engaged on issues while in office that were part of his port- interest and protect against the improper influence of sci- folio as a lobbyist. For example, before serving as Secretary, entific research and policymaking. CLEANR and UCS Mr. Bernhardt sought to loosen protections for endangered recommend that Congress take the following actions: fish as a lobbyist and lawyer for Westlands Water District in California’s Central Valley.6 These are not isolated examples. DOI’s Inspector General (IG) investigated the actions of Assistant Secretary Douglas Domenech and found he

sity School of Law), Patrice Simms (Earthjustice), Ciara Torres-Spelliscy (Stetson University College of Law), Wendy E. Wagner (University of 7. Office of Inspector General, DOI, Investigative Report of Alleged Texas at Austin School of Law), Romany Webb (Columbia Law School Ethics Violation by the Assistant Secretary for Insular and Inter- Sabin Center for Climate Change Law), Pamitha Weerasinghe (UCS), national Affairs (2019), https://www.doioig.gov/sites/doioig.gov/files/ and Gabriel Weil (Climate Leadership Council). WebRedacted_AllegedEthicsViolationsASIIA.pdf. 3. Genna Reed et al., Center for Science and Democracy at UCS & 8. National Task Force on Rule of Law and Democracy, Proposals for CLEANR, Conflicts of Interest at Federal Agencies: Recommenda- Reform Volume II, at 22 (2019), https://www.brennancenter.org/sites/de- tions for 2021 and Beyond (2020), https://www.law.uci.edu/centers/ fault/files/2019-09/2019_10_TaskForce%20II_0.pdf. cleanr/news-pdfs/defense-of-science.pdf. 9. Kavya Balaraman, Trump Adviser: No Need to Deal With Climate in Farm 4. Derek Kravitz et al., Trump Town, ProPublica, Oct. 15, 2019, https:// Policy, E&E News, Oct. 20, 2016, https://www.eenews.net/climatewire/ projects.propublica.org/trump-town. stories/1060044564; see also Amy Mayer, Trump’s Nominee to Be USDA’s 5. Louisiana Oil and Gas Association (@LaOilGasAssoc), Twitter (Sept. Chief Scientist Is Not a Scientist, NPR, Sept. 4, 2017, https://www.npr. 18, 2018, 2:00 PM), https://twitter.com/LaOilGasAssoc/status/ org/2017/09/04/547934012/trumps-nominee-to-be-usdas-chief-scientist- 1042111137603567616. is-not-a-scientist. 6. Coral Davenport, Top Leader at Interior Dept. Pushes a Policy Favor- 10. Rebecca Hersher & Joe Palca, Longtime Climate Science Denier Hired at ing His Former Client, N.Y. Times, Feb. 12, 2019, https://www.nytimes. NOAA, NPR, Sept. 12, 2020, https://www.npr.org/2020/09/12/912301325/ com/2019/02/12/climate/david-bernhardt-endangered-species.html; Coral longtime-climate-science-denier-hired-at-noaa. Davenport, Trump’s Pick for Interior Dept. Continued Lobbying After Official- 11. Id. ly Vowing to Stop, New Files Show, N.Y. Times, Apr. 4, 2019, https://www. 12. National Task Force on Rule of Law and Democracy, supra note 8, at nytimes.com/2019/04/04/climate/david-bernhardt-interior-lobbying.html. 23.

● Establish statutory job qualifications for certain high-level can easily get around this restriction through “stra- positions that warrant specific expertise, experience, or edu- tegic consulting” arrangements in which the former cational background13: official directs a lobbying team without directly making the lobbying contact.21 This recommenda- o On a position-by-position basis. For example, the tion would bring strategic consulting arrangements director of the U.S. Fish and Wildlife Service must under the types of lobbying activity prohibited. be “by reason of scientific education and experience, knowledgeable in the principles of fisheries ● Enhance transparency by requiring the Office of Person- and wildlife management.”14 nel Management to maintain an online public directory of all political appointee roles, including acting officials, and o Through agencywide threshold qualifications.The requiring agencies to regularly update information they U.S. Department of Defense, for example, requires provide for this directory.22 civilian status for most top leadership positions.15 Agencies’ conflict-of-interest policies and practices also ● Address conflict-of-interest issues pertaining to the revolv- need to be improved. CLEANR and UCS recommend ing door. Conflict-of-interest laws restrict the activi- that agencies’ policies include the following provisions: ties of individuals who leave government service for employment in the private sector—the revolving ● Bar political appointees with financial interests that would door.16 Despite these existing federal restrictions, be affected by policies on which they work from holding abuses of the revolving door and the conflicts of inter- decisionmaking authority on those issues or otherwise hav- est that come with those abuses compromise the integ- ing undue influence on policy outcomes. rity of federal policymaking. To slow the revolving door, Congress should: o Establish criteria for issuing conflict-of-interest waivers.23 o Bar political appointees from lobbying their agencies after they leave government service for the duration of o Stipulate in all conflict-of-interest waivers the param- the administration in which they serve,17 but no less eters of permitted participation, and release this than two years. The cooling-off period during which information to the public for comment before major appointees should not be influencing government decisions are made.24 should be no less than two years. Two years covers a full legislative cycle, and allows for turnover of ● Require political appointees to recuse themselves from officials and staff before a former political appoin- policy decisions involving any party that was their tee is permitted to lobby after leaving office.18 employer or client during the previous two years, regard- less of whether they maintain financial ties to that party. o Close the “strategic consulting” loophole by prohibit- Enforce recusals by: ing “any lobbying activity to facilitate any communi- cation to or appearance before” any officer or employee o Requiring senior political officials to regularly report of the agency in which the former political appointee to agency ethics officers the agenda items from which served.19 Existing revolving door restrictions spec- they recuse themselves. ify that the type of activity prohibited is lobbying contacts and communications with government o Establishing protocols for employees to report breaches officials.20 Currently, former political appointees of ethics agreements to IGs for further investigation and to ensure the anonymity of reporting employees. 13. Id. at 24; Henry B. Hogue, Congressional Research Service, RL33886, Statutory Qualifications for Executive Branch Positions 12, 15-17 (2015). 14. 16 U.S.C. §742(b). 15. Hogue, supra note 13, at 15. tive branch may not for two years make representations or advocacy con- 16. 18 U.S.C. §207. tacts on any matter before their former agencies, or to any person in certain 17. Martha Kinsella et al., Brennan Center for Justice, Executive Ac- executive-level positions in any department/agency of the entire executive tions to Restore Integrity and Accountability in Government 11 branch); Holman & Esser, supra note 18, at 4; Jack Maskell, Congres- (2020), https://www.brennancenter.org/sites/default/files/2020-10/Execu- sional Research Service, R42728, Post-Employment, “Revolving tiveActionsReport.pdf. Door,” Laws for Federal Personnel 4 (2014). 18. Craig Holman & Caralyn Esser, Public Citizen, Slowing the Federal 21. Holman & Esser, supra note 18, at 4-5. Revolving Door 3 (2019), https://mkus3lurbh3lbztg254fzode-wpengine. 22. See PLUM Act of 2020, H.R. 7107, 116th Cong. (2020). netdna-ssl.com/wp-content/uploads/Slowing-the-Federal-Revolving-Door- 23. See Kinsella et al., supra note 17, at 11; Bipartisan Policy Center, Im- Report.pdf. proving the Use of Science in Regulatory Policy 23 (2009), https:// 19. For the People Act of 2019, H.R. 1, 116th Cong. §8005(a) (2019) (propos- bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Science-Report- ing revolving door restrictions on employees moving into the private sector). fnl.pdf. 20. E.g., 18 U.S.C. §207(c)(1) (providing that senior-level employees in the 24. Center for Science and Democracy at UCS, Preserving Scientific executive branch may not make advocacy contacts or representations, or Integrity in Federal Policymaking: Lessons From the Past Two any appearance before officers or employees of their former departments or Administrations and What’s at Stake Under the Trump Administra- agencies, for one year after the senior employees leave their agency/depart- tion 31 (2017), https://www.ucsusa.org/sites/default/files/attach/2017/01/ ment); id. §201(d)(1) and (2) (providing very senior officials in the execu- preserving-scientific-integrity-in-federal-policymaking-ucs-2017.pdf.

● Require all political appointees to make timely public disclo- in FVRA and, in some cases, completely ignore its require- sure of conflicts of interests and to issue recusal statements. ments.34 Specifically, presidents have circumvented FVRA’s 210-day limit by delegating the responsibilities of agency ● Require timely public posting of agency visitor logs and cal- heads to subordinates who can carry out those responsi- endars of political appointees, except for information sub- bilities indefinitely, rather than select acting officials.35 ject to Freedom of Information Act (FOIA) exemptions. Additionally, a president’s submission of a nomination to the Senate allows an acting official to serve while the Sen- These recommendations for Congress and agencies ate considers the nomination.36 Thus, the Senate can stall would strengthen protections against conflicts of interest making a decision on a nomination to extend the time dur- and limit the influence that political appointees with such ing which the acting official serves beyond FVRA’s 210- conflicts of interest may have, both while in office and after day limit. leaving government. On an unprecedented level, Trump Administration acting officials have been “quietly dropping ‘acting’ from their titles”37 and holding their positions for well beyond B. Address the Shortcomings of the the 210-day limit.38 A district court judge ruled in Septem- Federal Vacancies Reform Act ber 2020 that acting Bureau of Land Management (BLM) Director William Perry Pendley had unlawfully served in The Appointments Clause of the U.S. Constitution his temporary position for 424 days, in violation of FVRA requires that the president appoint agency officials with the and the Constitution.39 While awaiting Mr. Pendley’s Sen- advice and consent of the U.S. Senate.25 With more than ate confirmation hearing, rather than officially designate 1,200 positions requiring Senate confirmation to fill, act- him as acting director, Interior Secretary Bernhardt del- ing officials and vacancies are not uncommon.26 However, egated all “functions, duties, and responsibilities” of the the Trump Administration stands apart from prior admin- BLM director to Mr. Pendley, which Mr. Pendley had been istrations in its use of acting officials and vacancies rate.27 performing since July 2019.40 In the fourth year of the Trump Administration, of the In issuing an order barring Mr. Pendley from continu- 757 key positions requiring Senate confirmation, almost ing to exercise the authority of the acting BLM direc- 30% remained unfilled. Forty-three percent of EPA posi- tor, the district judge stated that “[p]residents cannot tions and 28% of DOI positions were still vacant,28 and avoid their constitutional obligation to appoint Officers as of October 2020, 13 Senate-confirmed science positions on advice and consent of the Senate by making ‘tempo- across agencies remained unfilled.29 Trump explicitly stated rary’ delegations with evasive titles and delegations.”41 In that he likes filling vacancies with acting officials because October 2020, the same judge invalidated three Montana it gives him flexibility—that is, he can fill high-level posi- land management plans on the grounds that Mr. Pendley tions without Senate advice and consent.30 oversaw the plans while serving unlawfully as acting BLM While the Federal Vacancies Reform Act (FVRA)31 director.42 This order opened up the potential for numerous attempts to preserve the Senate’s advice and consent legal challenges to other land management decisions made authority by limiting the individuals authorized to serve by Mr. Pendley,43 the first of which was filed in Colorado, as acting officials to three classes of employees32 and limit- challenging a revised land management plan that would ing the number of days an acting official can serve to 210 expand oil and gas development on hundreds of thousands days,33 presidents have still been able to exploit loopholes of acres of land.44

25. U.S. Const. art. II, §2, cl. 2. 34. See, e.g., National Task Force on Rule of Law and Democracy, su- 26. See, e.g., National Task Force on Rule of Law and Democracy, supra note 8, at 18; Rebecca Jones, The Dangers of Chronic Federal Vacan- pra note 8, at 16-17; Partnership for Public Service, The Replace- cies, Project on Gov’t Oversight, Aug. 6, 2019, https://www.pogo.org/ ments: Why and How “Acting” Officials Are Making Senate Con- analysis/2019/08/the-dangers-of-chronic-federal-vacancies/. firmation Obsolete 1 (2020), https://ourpublicservice.org/publications/ 35. See, e.g., Rose, supra note 30. the-replacements/. 36. 5 U.S.C. §3345; see also Margaret Taylor, Is It Time to Reform the Federal 27. See, e.g., National Task Force on Rule of Law and Democracy, supra Vacancies Reform Act?, Lawfare, Mar. 10, 2020, https://www.lawfareblog. note 8, at 16; Partnership for Public Service, supra note 26, at 1. com/it-time-reform-federal-vacancies-reform-act. 28. See Partnership for Public Service, Political Appointee Tracker, https://our- 37. David Dayen, Trump’s Acting Directors Are Quietly Dropping “Acting” From Their publicservice.org/political-appointee-tracker/ (last visited Nov. 3, 2020). Titles, Intercept, Nov. 29, 2017, https://theintercept.com/2017/11/29/ 29. See id.; National Academy of Sciences et al., Science and Technolo- trump-administration-acting-director-cfpb-mick-mulvaney. gy for America’s Progress: Ensuring the Best Presidential Appoint- 38. E.g., Hannah Northey, “Acting” Titles Vanish Across Trump Admin, ments in the New Administration 15-16 (2008). E&E News, Nov. 27, 2017, https://www.eenews.net/greenwire/ 30. See Brian Naylor, An Acting Government for the Trump Administration, stories/1060067353/feed. NPR, Apr. 9, 2019, https://www.npr.org/2019/04/09/711094554/an- 39. Order at 34, Bullock v. U.S. Bureau of Land Mgmt., No. 4:20-cv-00062- acting-government-for-the-trump-administration; Joel Rose, How BMM, 50 ELR 20226 (D. Mont. Sept. 25, 2020). Trump Has Filled High-Level Jobs Without Senate Confirmation Votes, 40. Id. at 4. NPR, Mar. 9, 2020, https://www.npr.org/2020/03/09/813577462/ 41. Id. at 28. how-trump-has-filled-high-level-jobs-without-senate-confirmation. 42. Order at 10, Bullock v. U.S. Bureau of Land Mgmt., No. 4:20-cv-00062- 31. 5 U.S.C. §§3345-3349(d). BMM, 50 ELR 20238 (D. Mont. Oct. 16, 2020). 32. These three classes are (1) the first assistant to the vacant office; (2) another 43. Scott Streater, Wave of Lawsuits Coming Over Pendley’s BLM Deci- senate-confirmed official in the executive branch; or (3) a senior official who sions, E&E News, Oct. 19, 2020, https://www.eenews.net/greenwire/ has been serving in the same agency as the vacant office for at least 90 of the stories/1063716529/search?keyword=pendley. previous 365 days. Id. §3345. 44. Scott Streater, First Pendley Lawsuit Targets BLM Colo. Land Use Plan, E&E 33. Id. §3346. News, Oct. 27, 2020, https://www.eenews.net/assets/2020/10/27/docu-

Despite some effective enforcement of FVRA, many the Senate, the president would be able to install an acting argue FVRA’s enforcement mechanisms are weak and inef- official from any of the three classes identified in FVRA.53 fective.45 FVRA relies on agencies to self-report vacancies.46 Self-reporting often results in delayed reporting such that ● Congress should clarify that when a president terminates any lawsuit that may have been brought to address unlaw- an official in a position requiring Senate confirmation, ful conduct is rendered moot.47 FVRA applies and the vacant position should be filled in Leaving key positions vacant and failing to appoint per- accordance with the succession delineated in the recom- manent officials creates instability and undermines effec- mendation above. tive policymaking.48 To address the shortcomings of FVRA and better protect against conflicts of interest in filling ● Congress should reduce the time period during which act- positions that require Senate confirmation, CLEANR and ing officials can serve.54 UCS recommend the following: ● To promote transparency and accountability, Congress ● To close the gap of 13 unfilled science positions, the should require agencies to regularly report vacancies and executive should commit to filling open science leadership appointments made pursuant to FVRA and make this positions with individuals who have specialized training or information publicly available online.55 experience and who meet the limits set forth by FVRA.49 The scientific leadership of these chief science officers is These recommendations would strengthen FVRA and critical for the effective and strategic oversight of agency address the political gamesmanship fueled by conflicts of science that informs policymaking decisions.50 interest that can surround decisions regarding whether and how to fill key vacant positions. o Specifically, the president should: C. Distinguish Science From Policy Appoint a widely respected scientist to the position of science advisor to the president and nominate Even where vacancies are promptly filled by individuals free that person to direct the Office of Science and Tech- of conflicts of interest, the integrity of scientific research nology Policy (OSTP). and resulting policy decisions can be compromised if there is not a clear understanding among political officials and Issue an Executive Order requiring all science staff concerning the distinction between scientific judg- agencies that do not have an Office of the Chief ments and judgments based on policy matters and values.56 Scientist to have chief science officers.51 Policy matters and values should not dictate scientific research outcomes.57 Similarly, science can inform, but o Congress should pass legislation establishing an Office cannot answer, questions of precisely how much risk to of the Chief Scientist in all science agencies. human and environmental health should be permissible.58 To preserve the integrity of scientific research, there ● Rather than allowing vacancies to be filled by an indi- must be “barriers between political appointees who view vidual in any of the three classes identified in FVRA, their mission as the single-minded advancement of the Congress should establish a succession statute that requires President’s policy agenda and career employees charged the president to first fill a vacancy with an acting official with providing scientific advice or analysis.”59 Trump from within the same agency as the vacancy who has served Administration political officials have interfered with sci- for a minimum period of time in the federal government.52 ence in numerous ways since the start of the Administra- Once the president has submitted a formal nomination to tion. For example, DOI halted National Academies of Sciences, Engineering, and Medicine studies on improving

ment_gw_10.pdf. 45. National Task Force on Rule of Law and Democracy, supra note 8, at 19. 46. Jones, supra note 34. 53. Id. 47. Id. 54. E.g., Geof Koss, Democrats Eye Post-Trump Oversight, Agency Reforms, E&E 48. See, e.g., National Task Force on Rule of Law and Democracy, supra News, Sept. 24, 2020, https://www.eenews.net/eedaily/2020/09/24/sto- note 8, at 15-16. ries/1063714535 (reporting that U.S. House of Representatives Democrats 49. For reference, the U.S. Department of Agriculture’s statutory requirements introduced the Protecting Our Democracy Act, which aims to strengthen for its chief scientist position are as follows: “The Under Secretary shall be congressional oversight of the executive branch by, among other provisions, appointed by the President, by and with the advice and consent of the Sen- limiting acting agency heads’ tenure to 120 days). ate, from among distinguished scientists with specialized training or sig- 55. National Task Force on Rule of Law and Democracy, supra note 8, at nificant experience in agricultural research, education, and economics.” 7 20. U.S.C. §6971. 56. See Bipartisan Policy Center, supra note 23, at 15; Holly Doremus, Sci- 50. See UCS et al., Restoring Science, Protecting the Public: 43 Steps entific and Political Integrity in Environmental Policy, 86 Tex. L. Rev. 1601 for the Next Presidential Term 4 (2020), https://ucs-documents. (2008); Thomas O. McGarity & Wendy E. Wagner,Deregulation Using s3.amazonaws.com/science-and-democracy/restoring-science-protecting- Stealth “Science” Strategies, 68 Duke L.J. 1719, 1787-89 (2019). the-public.pdf; National Academy of Sciences et al., supra note 29. 57. Bipartisan Policy Center, supra note 23, at 15. 51. UCS et al., supra note 50, at 4. 58. Id. 52. National Task Force on Rule of Law and Democracy, supra note 8, at 59. McGarity & Wagner, supra note 56, at 1785 (citing Doremus, supra note 19. 56, at 1640).

safety inspections of offshore drilling60 and the potential concludes that it is not possible to eliminate policy con- health risks of surface coal mining.61 EPA’s Strengthening siderations from the risk assessment component, NAS Transparency in Regulatory Science rule62 restricts the use suggests integrity can be preserved by “development of of science in policymaking, and the Agency has been mov- a procedure to ensure that judgments made in risk assess- ing it forward during an unprecedented global pandemic, ments, and the underlying rationale for such judgments are despite opposition from the scientific community.63 made explicit.”71 This is not the first administration in which political officials have meddled in scientific research.64 Under the ● The president should require agencies to develop guidance George W. Bush Administration, for example, Julie Mac- to help ensure that their syntheses of scientific literature Donald, former deputy assistant secretary for fish, wildlife, underlying significant, science-intensive decisions are con- and parks at DOI, interfered countless times with listing ducted by agency scientists who are firewalled from politi- and critical habitat decisions, pressuring staff to change cal staff and external interest groups.72 findings, editing scientific reports from the field, and releasing nonpublic information to private-sector sources.65 o Direct agency political staff to identify the questions An Office of Inspector General (OIG) investigative report that scientific research is expected to inform. Scientific disclosed that she had been described as “lean[ing] more staff should conduct a publicly available literature toward the question of: ‘Does the science fit the policy?’”66 search as the first step in the decisionmaking process. To help distinguish science from policy judgments, and This search and other parts of the decisionmaking to prevent political appointees from interfering with scien- process (e.g., the development of artificial intelligence tific research, CLEANR and UCS recommend the follow- or computational models) should be protected from ing actions: political influence.

● The president should require agencies to distinguish o Record and make public scientific synthesis documents between scientific questions and policy questions in notices before they go to political staff. of proposed rules and guidance that are informed by science.67 There is precedent for this, as recommended for o Log and publish, as part of the administrative record, risk assessment by the National Academy of Sciences all communications between staff and political offi- (NAS).68 NAS suggests that the “scientific findings cials and/or interest groups concerning these scientific and policy judgments embodied in risk assessments” syntheses in the decisionmaking process.73 The limited and “the political, economic, and technical consider- scope of the recommendation would ensure it is ations that influence the design and choice of regula- not overly burdensome so long as communications tory strategies” are distinguishable.69 NAS recommends are warranted.74 separating the regulatory process into two distinct com- ponents: (1) risk assessment, which is primarily “based ● Congress should pass legislation codifying the above rec- on scientific considerations, but . . . also requires [policy] ommendations regarding establishment of a firewall judgments to be made when the available information between agency scientists and political staff/external inter- is incomplete”; and (2) risk management, which uses est groups.75 This legislation should also require agencies the risk assessment to determine the appropriate regu- to provide assurances that assessments integrating scientific latory response and “includes the application of value information have been analyzed by agency scientists who judgments to reach a policy decision.”70 Although NAS have been firewalled from political staff.76

60. Another National Academy of Sciences Study Halted, Union Con- ● Congress should pass legislation barring the following concerned Scientists, Dec. 18, 2017, https://www.ucsusa.org/resources/ duct of political appointees and requiring that agencies attacks-on-science/another-national-academy-sciences-study-halted. 61. Department of Interior Halts Study on Health Risks of Coal, Union Con- include these principles in scientific integrity policies: cerned Scientists, Aug. 18, 2017, https://www.ucsusa.org/resources/ attacks-on-science/department-interior-halts-study-health-risks-coal. 62. U.S. EPA, Strengthening Transparency in Regulatory Science, https://www. epa.gov/osa/strengthening-transparency-regulatory-science (last updated Apr. 2, 2020). 63. Aristos Georgiou, EPA Accused of Trying to Push Through Censored Science Rule During Pandemic, Newsweek, June 23, 2020, https://www.newsweek. com/epa-push-censored-science-rule-pandemic-1512590. 71. Id. at 49. 64. See Berman & Carter, supra note 1, at 2. 72. McGarity & Wagner, supra note 56, at 1785-800; see also Commission on 65. Office of Inspector General, DOI, Investigative Report on Allega- Life Sciences, supra note 68, at 152. tions Against Julie MacDonald, Deputy Assistant Secretary, Fish, 73. See Kinsella et al., supra note 17, at 13. Wildlife, and Parks 2 (2006), https://www.doioig.gov/sites/doioig.gov/ 74. See National Task Force on Rule of Law and Democracy, Propos- files/Macdonald.pdf. als for Reform 19-20 (2018), https://www.brennancenter.org/sites/ 66. Id. at 5. default/files/2019-08/Report_TaskForceReport_2018_09.pdf (arguing 67. Bipartisan Policy Center, supra note 23, at 15. that requiring law enforcement log contacts with the White House per- 68. Commission on Life Sciences, National Research Council of the taining to U.S. Department of Justice and other federal agency enforce- National Academies, Risk Assessment in the Federal Government: ment-specific matters would deter inappropriate communications and Managing the Process (1983). not be overly burdensome). 69. Id. at 151. 75. McGarity & Wagner, supra note 56, at 1786-87. 70. Id. at 48, 151. 76. Id. at 1736.

o Editing or censoring of research findings for personal, sidelined.86 This is especially the case at EPA. The Agency, financial, ideological, or partisan political gain.77 for example, disbanded the Particulate Matter Review Panel, prevented the Scientific Advisory Committee on o “[D]irecting the dissemination of scientific infor- Chemicals from advising on certain decisionmaking pro- mation that the directing [appointee] knows is false cesses, and replaced committee members with individuals or misleading.”78 who have clear conflicts of interest.87 In particular, after issuing a memo barring scientists with EPA grants from o Retaliating or discriminating against researchers “ for serving on advisory committees, the Agency announced the development or dissemination of scientific research Louis Anthony Cox Jr. as the new chair of its Clean Air or analysis that the researchers reasonably believe to be Scientific Advisory Committee (CASAC). accurate and valid.”79 EPA officials had advised former EPA Administrator Scott Pruitt against appointing Mr. Cox due to possible These recommendations would help ensure that pol- financial conflicts of interest, lack of impartiality, and lack icy decisions have been informed by impartial, scientific of relevant scientific expertise.88 Mr. Pruitt ignored staff research uninfluenced by political appointees’ agendas. recommendations and appointed Mr. Cox despite his lack This, in turn, would also better instill public confidence in of relevant credentials, fringe scientific views on the role of federal policymaking. causal analysis in ambient air quality standards, and long history of questioning the scientific basis for proposed pub- II. Federal Advisory Committees lic protections on behalf of regulated industries.89 Mr. Cox’s proposals as chair of CASAC have endan- To ensure that policy decisions are science-based and pub- gered public health protections, eroding public confidence licly accountable, the federal government has long relied in government.90 Experts in the scientific community have on the advice of external scientists serving on FACs. FACs expressed concern that he has compromised the Agency’s play a critical role in shaping federal policy. The Federal ability to obtain adequate scientific advice and set a health- Advisory Committee Act (FACA) governs the establish- protective standard on particulate matter.91 ment and operation of FACs.80 FACA requires that FACs Under Mr. Pruitt, political officials consistently and “be fairly balanced in terms of the points of view repre- inappropriately influenced the FAC member selection sented and the functions to be performed,” and not “inap- process.92 Recently, the U.S. Government Accountability propriately influenced by the appointing authority or by any special interest.”81 86. Genna Reed et al., Center for Science and Democracy at UCS, Abandoning Science Advice: One Year in, the Trump Administra- The U.S. General Services Administration (GSA) over- tion Is Sidelining Science Advisory Committees 9 (2018), https:// sees implementation of FACA, and develops regulations www.ucsusa.org/sites/default/files/attach/2018/01/abandoning-science- and guidance regarding the establishment of advisory advice-full-report.pdf. committees under FACA.82 The Office of Government 87. Id. at 5. 88. Letter from Thomas R. Carper, Ranking Member, U.S. Senate, and Shel- Ethics (OGE) issues guidance and regulations for agencies don Whitehouse, Senator, U.S. Senate, to Gene L. Dodaro, Comptroller pertaining to conflict-of-interest statutes.83 In addition, General of the United States, U.S. Government Accountability Office (Feb. 14, 2018), https://www.epw.senate.gov/public/_cache/files/9/2/92393cc8- executive branch departments and agencies are responsible 538a-4631-ad4c-0a57f8b8e676/3BC9F5D8E67D5EA1329CFE774A for continually reviewing FACs’ performance and com- AA5228.carper-whitehouse-send-new-internal-epa-documents-to-gao.pdf; pliance with the FACA, FOIA, and related regulations.84 Press Release, U.S. Senate Committee on Environment and Public Works, After Pruitt Bars Scientists With EPA Grants From Advisory Committees, Each agency also develops its own policies and procedures Carper and Whitehouse Highlight Concerns With New EPA Appointees’ for following FACA requirements.85 Conflicts of Interest (Jan. 9, 2018), https://www.epw.senate.gov/public/ Since the start of the Trump Administration, science index.cfm/2018/1/after-pruitt-bars-scientists-with-epa-grants-from-advisory-committees-carper-and-whitehouse-highlight-concerns-with-new-epa- advisory committees have been neglected, disbanded, or appointees-conflicts-of-interest. 89. Gretchen T. Goldman & Francesca Dominici, Don’t Abandon Evidence and Process on Air Pollution Policy, 363 Science 1398, 1399-400 (2019). 90. See, e.g., id. at 1400. 91. Letter from H. Christopher Frey, Glenn E. Futrell Distinguished University 77. National Task Force on Rule of Law and Democracy, supra note 8, at Professor, North Carolina State University et al., to Louis Anthony Cox Jr., 10; see Scientific Integrity Act, H.R. 1709, 116th Cong. §3(a) (2019). President, Cox Associates, and Chair, Clean Air Scientific Advisory Com- 78. National Task Force on Rule of Law and Democracy, supra note 8, at mittee, EPA (Dec. 10, 2018), https://yosemite.epa.gov/sab/sabproduct.ns 10. f/086D8B853E0B63AE8525835F004DC679/%24File/PMRP+Letter+to 79. Id. +CASAC+181210+Final+181210.pdf; Jonathan M. Samet, Comments 80. 5 U.S.C. app. 2 §§1-16. Concerning EPA’s Integrated Science Assessment (ISA) for Particu- 81. Id. §5(b)(2)-(3). late Matter (2018) (external review draft), available at https://yosemite. 82. GSA, Federal Advisory Committee Act (FACA) Management Overview, epa.gov/sab/sabproduct.nsf/02F0FC7F714CAAF08525836000638F9C/$ https://www.gsa.gov/policy-regulations/policy/federal-advisory-committee- File/CASAC_ISA_PM_Comment-samet.pdf; Goldman & Dominici, supra act-faca-management-overview (last reviewed Jan. 28, 2018); U.S. Gov- note 89, at 1398-400. ernment Accountability Office, GAO-08-611T, Issues Related to 92. See, e.g., Mark Hand, Government Watchdog to Investigate Scott Pruitt’s Shake- the Independence and Balance of Advisory Committees 1 (2008). up of EPA Advisory Boards, ThinkProgress, Mar. 7, 2018, https://archive. 83. OGE, What We Do, https://www.oge.gov/web/OGE.nsf/about_what-we- thinkprogress.org/gao-investigating-epa-advisory-boards-b615407c3644//; do (last visited Nov. 3, 2020). Warren Cornwall, Trump’s EPA Has Blocked Agency Grantees From Serving 84. U.S. Government Accountability Office, supra note 82, at 4; GSA, on Science Advisory Panels. Here Is What It Means, AAAS Sci. Mag., Oct. supra note 82. 31, 2017, https://www.sciencemag.org/news/2017/10/trump-s-epa-has- 85. U.S. Government Accountability Office, supra note 82, at 4. blocked-agency-grantees-serving-science-advisory-panels-here-what-it.

Office (GAO) found that EPA failed to follow its own pro- ● Establishing educational and professional requirements for tocol of documenting “staff input on the best qualified and some members of specific FACs.100 most appropriate candidates for achieving balanced committee membership before appointing . . . members.”93 ● Requiring that the committee makeup of science advisory committees be representative of the relevant scientific disci- plines, not views.101 A. Strengthen Protections Against Conflicts of Interest in FACs ● Addressing vacancies by establishing102:

Appointing individuals with conflicts of interest to advi- o A default selection process for vacancies that are not sory committees can have direct policy and public health promptly filled. consequences. To address conflicts of interest on FACs and protect the scientific integrity of the advice provided by o Staggered terms such that no more than one-third FACs, Congress should pass legislation: of the FAC members’ terms expire within a single fiscal year.103 ● Barring those with conflicts of interest from serving on committees unless conflicts are unavoidable. For example, o For-cause removal protections. when an individual’s experience and technical qualifications are particularly relevant to the topic the commit- OGE should explicitly define what constitutes a con- tee will address, and the agency cannot identify another flict of interest, and provide examples of actions that individual with comparable qualifications who does not would breach the appearance of impartiality. OGE should have a conflict of interest.94 ensure that none of the following constitute a conflict of interest, because none of these characteristics precludes an o If an agency determines conflicts are unavoid- objective assessment of scientific information presented to able, require it to provide an explanation for the a committee: determination as well as a plan for mitigating the known conflict. o Taking a public position on issues or having a point of view on policy. o Establish criteria for issuing conflict-of-interest waivers. Currently, a conflict-of-interest waiver can be o Receiving federal research grants and other govern- issued if “the need for the individual’s services ment funding for scientific work.104 outweighs the potential for a conflict of interest created by the financial interest involved.”95 The o Being a member of a scientific association, even if that recommendation would replace this with the more association has a stated policy agenda. rigorous NAS standard.96 Agencies also need to improve and enforce conflict-of- o Stipulate in all conflict-of-interest waivers the extent interest policies for FACs by: and conditions of permitted participation, and release this information to the public for comment before ● Ensuring the proper level of scrutiny of conflicts of inter- major decisions are made.97 est occurs.

● Barring certain types of conflicts.For example, a National ● Developing rules regarding which questions are appropri- Academies conflict-of-interest policy prohibits specific ate for science advisory committee review and when in a types of conflicts of interest pertaining to access to con- decisionmaking process committee input is most helpful.105 fidential information.98 Types of conflicts to consider may include where an individual is an employee or is funded by a company whose product is under review by the FAC.99 100. National Task Force on Rule of Law and Democracy, supra note 8, at 11. 101. See Bipartisan Policy Center, supra note 23, at 22, 27. 102. National Task Force on Rule of Law and Democracy, supra note 8, at 93. GAO, EPA Advisory Committees: Improvements Needed for the 11. Member Appointment Process, GAO-19-280, at 32 (2019), available at 103. Id. (citing the Environmental Research, Development, and Demonstration https://www.gao.gov/assets/710/700171.pdf. Act of 1983, S. 2577, 97th Cong. (1982); H.R. 6323, 97th Cong. (1982)). 94. Bipartisan Policy Center, supra note 23, at 23. 104. Relatedly, in the February 2020 decision in Natural Resources Defense Coun- 95. 18 U.S.C. §208(b)(3). cil, Inc. v. U.S. Environmental Protection Agency, the U.S. district court judge 96. National Academies, Policy on Committee Composition and Bal- held that EPA’s 2017 Strengthening and Improving Membership on EPA ance and Conflicts of Interest 4 (2003), available at https://www. Federal Advisory Committees directive banning EPA grant recipients from nationalacademies.org/_cache_9122/content/bi-coi_form-0-48857700000 serving on EPA FACs was arbitrary and capricious because EPA had failed 79783.pdf. to provide an explanation for its departure from prior EPA policy. 438 F. 97. Center for Science and Democracy at UCS, supra note 24, at 31. Supp. 3d 220, 50 ELR 20038 (S.D.N.Y. 2020). 98. National Academies, supra note 96, at 5. 105. See discussion in Section I.C on distinguishing questions of science from 99. Bipartisan Policy Center, supra note 23, at 22. questions of policy.

To enhance transparency and better promote account- with or without compensation, for not to exceed one hun- ability in FACs: dred and thirty days during any period of three hundred and sixty-five consecutive days.108 ● Congress should require agencies to disclose: A representative is “[a]n individual who is not a [f]ederal o Committee formation and member selection criteria, employee ([f]ederal employee who is attending in a per- including how agencies screen members and assess the sonal capacity), who is selected for membership on a scientific representativeness of committees, and which [f]ederal advisory committee for the purpose of obtaining political officials are involved in the process. the point of view or perspective of an outside interest group or stakeholder interest.”109 Only SGEs are subject to federal o The roster of the first round of candidates and allow conflict-of-interest laws.110 public comments. Some agencies appoint most or all FAC members as representatives, as opposed to SGEs, and, thus, these o Committee members’ qualifications, historical agency FAC members have not undergone reviews for conflicts and industry affiliations, recent funding history, and of interest.111 OGE has expressed concern that agencies any conflict-of-interest waivers granted.106 “may be purposely designating their committee members as representatives to avoid subjecting them to financial o When and why a FAC charter is not renewed or is disclosure statements required for [SGEs] and may not be disbanded before its charter ends.107 conducting conflict-of-interest reviews for some committee members when they should have been conducted.”112 ● Congress should pass legislation instituting a formal peti- OGE further found that some agencies appointed “mem- tion process for the public to request agencies to assemble bers as representatives even when the members [were] FACs for specific issues based on a set of criteria. called on to provide advice on behalf of the government on the basis of their judgment, rather than to represent ● Agencies should clearly state the tasks that are required views of outside organizations.”113 of each FAC, and make public time lines and work- To prevent inappropriate designation of FAC members: plans accordingly. ● Congress should extend conflict-of-interest disclosure ● Agencies should solicit public input on advisory commit- requirements that apply to members designated as SGEs to tee charters. those designated as representatives.

● Agencies should announce and enforce relevant conflicts o Disclosure requirements should include disclosure of and recusals at every advisory committee meeting. past employers and research funding.114

These recommendations for Congress and agencies o Designated agency ethics officials should evaluate the would help protect the scientific integrity of FACs by quality of financial disclosure reviews as part of the strengthening conflict-of-interest laws and agency policies periodic reviews of agency ethics programs. and by enhancing transparency through mandatory disclo- sures and increased public input. ● Agencies should issue and enforce policies that representative status is designated when an FAC member is asked B. Prevent Circumvention of FACA Requirements to represent the position of a stakeholder or other outside interest group, as opposed to the FAC member’s own, indi- FAC members can be appointed as special government vidual opinions. employees (SGEs) or representatives. An SGE is an ● For committees with a mission solely to provide neutral sci- officer or employee of the executive or legislative branch of entific advice (as opposed to those designed to gather input the United States Government, of any independent agency from diverse stakeholders), agencies should ensure that of the United States or of the District of Columbia, who is retained, designated, appointed, or employed to perform, 108. 18 U.S.C. §202(a). 109. Wendy Ginsberg & Casey Burgat, Congressional Research Service, 106. See National Task Force on Rule of Law and Democracy, supra note R44253, Federal Advisory Committees: An Introduction and Over- 8, at 11-12; Sidney Shapiro, Closing the Door on Public Accountability, Cen- view 12 n.67 (2016), https://fas.org/sgp/crs/secrecy/R44253.pdf (emphasis ter for Progressive Reform, July 2009, http://progressivereform.net/ added) (citing FACA database definition). perspFACA.cfm; see also Federal Advisory Committee Act Amendments of 110. GAO, Federal Advisory Committees: Additional Guidance Could 2019, H.R. 1608, 116th Cong. §4(a) (2019). This requirement would not Help Agencies Better Ensure Independence and Balance 18 (2004), be overly burdensome so as to chill participation because scientists are regu- available at https://www.gao.gov/assets/250/242039.pdf. larly required to disclose this information in other contexts such as journal 111. Id. at 18, 20. submissions and research grants. 112. Id. at 20, 21 (describing an OGE study of agencies, including DOI, that 107. Genna Reed & Gretchen Goldman, Center for Science and Democ- appointed all or almost all members as representatives). racy at UCS, Scientific Integrity of Federal Advisory Committees 113. Id. at 21. 4 (2020), https://www.ucsusa.org/sites/default/files/2020-09/si-of-federal- 114. National Task Force on Rule of Law and Democracy, supra note 8, at advisory-committees.pdf. 11-12; see also Kinsella et al., supra note 17, at 15.

members are appointed as SGEs and vetted for financial The peer review process has been proven vulnerable to conflicts of interest and biases.115 undue influence from individuals with conflicts of interest. For example, a 2004 EPA study found that “the injec- Further, FACA requirements do not apply to “[a]ny tion of hydraulic fracturing fluids into coal-bed methane committee or group created by non-[f]ederal entities (such wells poses little or no threat to USDWs [underground as a contractor or private organization), provided that these sources of drinking water].”125 However, a whistleblower committees or groups are not actually managed or con- revealed that five of the seven members of the peer review trolled by the executive branch.”116 Courts have held that panel appeared to have conflicts of interest, and that ear- “groups formed by private contractors that are not subject to lier drafts of the study had found potential threats to direct management or control by an administrative agency drinking water.126 are not ‘utilized’ by the agency so as to trigger FACA.”117 Building upon the OMB peer review bulletin, Congress Congress should eliminate the ability of federal agencies to cir- should require agencies to develop clear guidance for using cumvent FACA requirements by utilizing nonfederal entities peer review in scientific assessments. OSTP should ensure that to establish advisory committees by extending FACA rules to agencies apply peer review guidance consistently.127 advisory committees organized by federal contractors.118 To address conflicts of interest and protect the integrity These recommendations would eliminate loopholes in of the scientific peer review process, agencies should: FACA that have been exploited to avoid disclosing conflicts of interest. ● Bar those with financial ties to institutions or entities potentially affected by the review—including reviewers, III. Scientific eerP Review Process government contractors, and agency staff administering the process—from involvement in the peer review process. Peer review is an essential component of the scientific process, ensuring the quality and integrity of scientific o Establish criteria for issuing conflict-of-interest research used to inform policy decisions.119 As stated in the waivers. Office of Management and Budget’s (OMB’s) 2005 peer review bulletin, peer review “is one of the most important o Stipulate in all conflict-of-interest waivers the extent procedures to ensure that the quality of published infor- and conditions of permitted participation and release mation meets the standards of the scientific and technical this information to the public for comment before community.”120 Peer review practices and purposes differ major decisions are made.128 across agencies. Generally, however, peer review is used to assess the validity and quality of research at different stages o Require that scientists involved in a peer review of throughout the research process,121 in order to make deci- agency scientific documents be technically quali- sions about “journal publication, grant funding, and infor- fied and that agencies use at least one peer reviewer mation dissemination.”122 external to the agency whenever possible.129 “Exter- Peer review can improve agency decisionmaking by nal experts often can be more open, frank, and increasing the “technical quality and credibility of regu- challenging to the status quo than internal latory science,”123 and by enhancing the transparency reviewers, who may feel constrained by organi- surrounding the science on which an agency bases its zational concerns.”130 decision.124 Thus, agencies should affirm that scientific peer review is the appropriate standard for ensuring the quality of To promote transparency and accountability, agen- agency scientific information. cies should:

● Make public the process used for peer review in each situa- 115. Center for Science and Democracy at UCS, Presidential Recom- mendations for 2020, at 11 (2020), available at https://www.ucsusa.org/ tion, including: sites/default/files/2020-01/presidential-recommendations-for-2020_0.pdf. 116. 41 C.F.R. §102-3.40(d) (West 2020). o How potential reviewers were identified. 117. Administrative Conference of the United States, Administrative Conference Recommendation 2011-7: The Federal Advisory Com- mittee Act—Issues and Proposed Reforms (2011), https://www.acus. gov/sites/default/files/documents/Recommendation-2011-7-Federal-Advi- sory-Committee-Act.pdf (citing Byrd v. U.S. Envtl. Prot. Agency, 174 F.3d 125. Gretchen Goldman et al., Center for Science and Democracy at 239, 246-47, 29 ELR 21150 (D.C. Cir. 1999); Food Chem. News v. Young, UCS, Toward an Evidence-Based Fracking Debate 17 (2013) (citing 900 F.2d 328, 333 (D.C. Cir. 1990)). U.S. EPA, Evaluation of Impacts to Underground Sources of Drink- 118. Bipartisan Policy Center, supra note 23, at 25. ing Water by Hydraulic Fracturing of Coalbed Methane Reser- 119. See, e.g., Final Information Quality Bulletin for Peer Review, 70 Fed. Reg. voirs Study (2004)), https://www.ucsusa.org/sites/default/files/2019-09/ 2664, 2666 (Jan. 14, 2005); GAO, Peer Review Practices at Federal fracking-report-full_0.pdf. Science Agencies Vary, GAO/RCED-99-99 (1999). 126. Id. 120. 70 Fed. Reg. at 2665. 127. Id. at 5. 121. GAO, supra note 119, at 6. 128. Center for Science and Democracy at UCS, supra note 24, at 31. 122. 70 Fed. Reg. at 2666. 129. Center for Science and Democracy at UCS, supra note 115, at 5. 123. Sarah Grimmer, Public Controversy Over Peer Review, 57 Admin. L. Rev. 130. 70 Fed. Reg. at 2669 (citing National Research Council of the Na- 275, 281 (2005). tional Academies, Peer Review in Environmental Technology De- 124. See J.B. Ruhl & James Salzman, In Defense of Regulatory Peer Review, 84 velopment Programs: The Department of Energy’s Office of Science Wash. U. L. Rev. 1, 8 (2006). and Technology 3 (1998)).

o Why specific individuals were selected among the also left key oversight positions unfilled by Senate-vetted larger set of candidates. appointees, and allowed sometimes unqualified acting officials to serve for extended periods.135 To preserve indepen- o Who in the agency makes the selection of the individ- dent oversight by OIGs: ual peer reviewers and the basis for his or her decision. ● The president should nominate qualified individuals to o Whether the decisionmaker is or is not a scientific lead OIGs and fill vacant Senate-confirmed positions that expert on the matter. are currently filled by acting IGs.136 While confirmations of nominees are pending, the president should ensure that all ● Require that peer reviewers’ substantive comments on scien- acting IGs are qualified for their positions, as required by tific documents and agency responses to those comments be the Inspector General Act, and free of conflicts of interest.137 made publicly available, while protecting the anonymity of reviewers. “The credibility of the final scientific report ● Congress should require the Council of the Inspectors Gen- is likely to be enhanced if the public understands how eral on Integrity and Efficiency to create and make public the agency addressed the specific concerns raised by the a list of recommended IG nominees.138 peer reviewers.”131 ● Congress should only allow removal of a Senate-confirmed These recommendations to protect against conflicts IG from office for substantial cause,139 and should require of interest within the peer review process will contribute that the president provide Congress and the public with to the scientific soundness of research and findings that substantial justification and explanation of cause for inform federal policymaking. removing an agency IG.140

IV. Oversight and Enforcement B. Use Congressional Oversight

The recommendations in Parts I through III above can- Although not explicit in the Constitution, Congress’ not adequately safeguard the use of science in federal poli- oversight and investigative powers are implied,141 and the cymaking without independent oversight and effective U.S. Supreme Court has confirmed the legal basis of this enforcement. Oversight and enforcement of conflicts of authority.142 The U.S. House of Representatives and Sen- interest is placed in a number of different hands—Con- ate have “largely delegated [their] constitutional oversight gress’ implied powers include that of oversight and inves- powers to [their] standing committees.”143 Committees tigation, OGE was created to oversee executive branch thus exercise this oversight through investigations into compliance with conflict-of-interest and other ethics executive actions.144 Congress should use its congressional laws,132 and IGs have the authority to conduct investiga- oversight authority to hold the Administration accountable for tions.133 The following recommendations are intended to decisionmakers with conflicts of interest. improve oversight and strengthen enforcement of conflict- There are many ways in which Congress may choose to of-interest laws and policies. exercise its oversight authority. Examples of this include commissioning GAO reports on relevant topics; penning A. Preserve Independent Oversight of IGs letters to agencies requesting information or clarification

The independence and integrity of each agency’s OIG is 135. Inspector General Vacancy Tracker, Project on Gov’t Oversight, May 5, essential for the effective oversight and enforcement of 2020, https://www.pogo.org/database/inspector-general-vacancy-tracker. government ethics regulations. Individuals serving in OIG 136. Jones, supra note 34; see Kinsella et al., supra note 17, at 7. 137. See Pub. L. No. 95-452, 92 Stat. 1101; Kinsella et al., supra note 17, at 7. leadership roles must be qualified to identify, investigate, 138. Letter from Chuck Grassley, Chairman, Senate Finance Committee, and and deal with waste, fraud, and abuse, including conflicts Ron Wyden, Ranking Member, Senate Finance Committee, to Michael E. of interest and the appearance of impropriety. Horowitz, Chair, Council of Inspectors General on Integrity and Efficiency (Apr. 14, 2020), https://www.finance.senate.gov/imo/media/doc/2020-04- In 2020, the Trump Administration fired two Senate- 14%20CEG%20and%20RLW%20to%20CIGIE%20(IG%20noms).pdf. confirmed IGs and replaced several acting IGs under ques- 139. E.g., Press Release, U.S. House of Representatives Permanent Select Com- tionable circumstances—five IGs over the course of six mittee on Intelligence, House Democrats Introduce Landmark Reforms Package, the Protecting Our Democracy Act (Sept. 23, 2020), https://in- weeks—including some who were actively investigating telligence.house.gov/news/documentsingle.aspx?DocumentID=1075 (“Per- Administration officials.134 The Trump Administration has mits only the President or the head of an agency to remove or place on administrative leave any Inspector General (IG), including IGs of the Intel- ligence Community (IC), and only for cause”). 131. Id. at 2670. 140. Press Release, Office of Sen. Chuck Grassely, Grassley Leads Bipartisan Bill 132. Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1825 to Bolster Inspector General Protections (June 18, 2020), https://www. (codified as amended at 5 U.S.C. app. §401). grassley.senate.gov/news/news-releases/grassley-leads-bipartisan-bill-bol- 133. Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101 (codified ster-inspector-general-protections; see Kinsella et al., supra note 17, at 7. as amended at 5 U.S.C. app.). 141. See U.S. Const. art. 1, §1. 134. Joe Davidson, Trump Is Allergic to Independent Oversight. The Inspectors Must 142. McGrain v. Daugherty, 273 U.S. 135 (1927). Be Protected, Wash. Post, May 23, 2020, https://www.washingtonpost. 143. Congressional Research Service, R45442, Congress’s Authority to com/politics/trump-is-allergic-to-independent-oversight-the-inspectors- Influence and Control Executive Branch Agencies 31 (2018). must-be-protected/2020/05/22/5ce644f4-9c4b-11ea-b60c-3be060a4f8e1_ 144. Congressional Research Service, R41079, Congressional Over- story.html. sight: An Overview 9 (2010).

regarding concluded, ongoing, or planned activities; sub- V. Conclusion mitting requests for documents or information; introduc- ing legislative solutions; holding congressional hearings; The Trump Administration has highlighted the vulner- requesting NAS studies; requesting IG studies to exam- abilities in the federal system by which science-based ine allegations of waste, fraud, or abuse at agencies; or decisions are made, particularly where conflicts of inter- issuing subpoenas.145 est are present. Safeguards to protect against distortions of scientific research and resulting federal policies are long C. Strengthen OGE’s Enforcement Authority overdue. Where federal policy decisions must be informed by scientific evidence, we need qualified, independent individu- While OGE’s mission is to “provide overall leadership als who are unencumbered by conflicts of interest and able to and oversight of the executive branch ethics program make decisions that benefit the public. In contrast to those designed to prevent and resolve conflicts of interest,”146 it who are hand-selected for specific policy agendas that under- is not structured to adequately enforce conflict-of-interest mine science-informed decisionmaking and heighten distrust laws.147 OGE does not have “investigative or prosecuto- of the federal government, the public interest is best served rial authority”—“OGE’s mission is one of prevention.”148 by political appointees and advisory committees that are free To strengthen effective enforcement of conflict-of-interest from financial or ideological interests. laws, Congress should: These recommendations for political leaders, agency career staff, and Congress are intended to improve conflict-of-inter- ● Grant OGE the authority to “initiate and conduct est disclosure and management policies surrounding political investigations of alleged ethics violations in the executive appointments, FACs, and the scientific peer review process, branch on referral from another government body or on and aim to enhance oversight and enforcement to protect its own initiative.”149 against such conflicts in the future. Enactment of such recommendations will help restore trust, and bolster opportu- ● Create a separate enforcement division within OGE to nities for the public to hold decisionmakers accountable. In separate enforcement staff from other staff functions.150 turn, such steps will help ensure that federal decisions are informed by scientific evidence, free of financial, ideological, These recommendations on oversight and enforcement or political conflicts of interest. would ensure that the conflict-of-interest laws and policies in place are effective. Effective oversight and enforcement is critical to the scientific integrity of research used in federal policymaking.

145. E.g., Congressional Research Service, IF10015, Congressional Oversight and Investigations 2 (2014); Congressional Research Service, RL30240, Congressional Oversight Manual 26-30 (2020). 146. OGE, Strategic Plan: Fiscal Years 2018-2022 (2018), https://www.oge. gov/web/OGE.nsf/0/5F2BA63E1DDF407D852585B6005A1E14/$FILE/ Finished%202018-22%20Strategic%20Plan.pdf. 147. National Task Force on Rule of Law and Democracy, supra note 74, at 12. 148. OGE, Resources for Reporting Misconduct, https://www.oge.gov/web/oge. nsf/about_reporting-misconduct (last visited Nov. 17, 2020). 149. National Task Force on Rule of Law and Democracy, supra note 74, at 13, 15. 150. See id. at 15.

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